CKPN and National Disability Insurance Agency

[2021] AATA 3447

CKPN and National Disability Insurance Agency [2021] AATA 3447 (28 September 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/5061

Re:CKPN

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:28 September 2021

Place:Sydney

The Tribunal decides that it will issue some, but not all, of the 16 requested summonses as outlined in the Reasons for Decision.

Pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal orders that the issues or matters to be considered and determined in this proceeding:

1.be confined to those listed in paragraphs [19] and [21] of the Reasons for Decision; and

2.will exclude any consideration of the issue in relation to the goals as stated in the Applicant’s National Disability Insurance Scheme plan.

Separate to this decision, the Tribunal will issue a direction requiring the Respondent to undertake an immediate search and to lodge further documents under s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth).

.........[SGD]............

Member K. Parker

CATCHWORDS

PRACTICE AND PROCEDURE – objection to Respondent’s request for 15 summonses –objections raised about issuing of summonses or certain aspects of them – Applicant’s request for one summons – determination by the Tribunal of the issues arising in the proceeding and orders made under s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether there is a reasonable expectation that summonses would shed light on the issues in the proceeding – whether period referred to in some of the summonses should be reduced – caution issued to both parties about their adversarial approach in the context of an expedited proceeding – some, but not all, summonses issued – Tribunal not satisfied time period referred to in summonses should be reduced

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

REASONS FOR DECISION

Member K. Parker

1. The Applicant, CKPN, is a four-year-old girl who is a participant of the National Disability Insurance Scheme (NDIS). She has a disability which affects her gastrointestinal function causing her to experience extreme feeding refusal. Reportedly, CKPN also experiences severe sleep, sensory and anxiety issues.

2. CKPN lives with her parents and grandmother in a suburban home in Sydney. Her mother, father, and grandmother all work four days per week and due to the Covid-19 related restrictions, their work is carried out from home.

3. This matter has come to the Tribunal because CKPN’s parents are not satisfied with and seek review of an internal review decision made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) in relation to a decision to approve a new statement of participant supports (SOPS) and NDIS plan for CKPN. In CKPN’s new SOPS, the delegate of the CEO of the National Disability Insurance Agency (NDIA) has approved funding of $17,459 for a period of 12 months, whereas in her last SOPS and NDIS plan, the NDIA approved funding of $182,381 for a period of 12 months. CKPN’s parents were shocked at this drastic reduction and sought that this application be expedited out of fear that CKPN’s conditions would deteriorate if she was not provided with the same level of care under her SOPS, as had been previously approved by the NDIA. CKPN’s parents also submitted that CKPN’s mother’s state of exhaustion would also deteriorate.

4. At a directions hearing by telephone on 30 August 2021, the Tribunal, as presently constituted, agreed to proceed with this matter expeditiously and listed it for a substantive hearing on 29 and 30 November 2021 and 1 December 2021. The matter was also referred to be listed for a conciliation conference to provide an opportunity for the parties to consider whether the number of issues in this matter could be narrowed, considering there were numerous different supports in dispute. A conciliation has now been listed to take place on 1 October 2021. On 30 August 2021, the Tribunal issued directions for a timetable for the lodgement of evidence and submissions by the parties. Under those directions, the NDIA is due to lodge its materials by 22 October 2021.

5. On 13 September 2021 the Tribunal received correspondence from the NDIA’s legal representative requesting that seven summonses be issued in this matter to the following “treating practitioners”:

   (a)Northern Beaches Care Centre;

   (b)Kids World Paediatric Therapy;

   (c)Bright Eyes Early Intervention;

   (d)Speech Pathology Services;

   (e)Randwick Specialists;

   (f)Sydney Children’s Hospital; and

   (g)Dr Reuben Jackson, Paediatric Gastroenterologist.

6. On 14 September 2021, CKPN’s parents made detailed objections to the requests for the above summonses or certain aspects of the summonses to be issued in this matter. These objections will be set out in detail below under the heading “CONSIDERATION”.

7. On 16 September 2021, the Respondent requested that a further eight summonses be issued to the following persons/entities:

   (a)Ms Jessica Wilson, Paradigm Shift –nutritionist;

   (b)Ms Jessie Stevenson, Nourishing Point – nutritionist and whole food chef;

   (c)Hire Up Pty Ltd;

   (d)In Home Care Support Agency;

   (e)Leor Pty Ltd;

   (f)Support Worker D;

   (g)Support Worker L; and

   (h)Support Worker J.

8. On 17 September 2021, CKPN’s parents raised detailed objections to the Respondent’s further request for summonses, as outlined in the paragraphs below under the heading “CONSIDERATION”.

9. Given the disputation between the parties about the issuing of the requested summonses, the Tribunal listed this application for an urgent interlocutory hearing on 22 September 2021. At this hearing, the NDIA was represented by counsel. CKPN was represented by her parents. Both parents had no difficulty representing CKPN’s interests. They were articulate and comprehensive in doing so and there was no access to justice issues arising, although CKPN’s mother asserted to the contrary. As competent as they both were, the Tribunal is concerned as to CKPN’s parents’ objectivity in the representation of CKPN and for this reason, the Tribunal encouraged CKPN’s parents to pursue pro bono legal representation for CKPN for the substantive hearing.

10. Finally, CKPN’s parents also raised an issue about whether the NDIA has met its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). In their correspondence to the Tribunal on 14 September 2021, they stated as follows:

    FURTHER NDIA DOCUMENTS

    There are certain relevant documents known to be held by NDIA which have not been included in the T Documents under s37 of the AAT Act. We wish to apply to the Tribunal for NDIA to provide these further documents under s37(2) of the AAT Act in lieu of issuing any summons. Could the Respondent's Representative also confirm whether the Cerebral Palsy Alliance is captured under "NDIA" for this purpose under s37 of the AAT Act, or whether we should issue a summons for their documents?

11. In correspondence by the NDIA’s legal representatives sent the following day, they respond as follows:

    With regard to the further NDIA documents that you reference in connection with the Cerebral Palsy Alliance, can you please clarify the nature of the documents you seek and how they relate to the Decision on Review.  For example, if your request is confined to exchanges between the Agency and the ECEI Coordinator noted by the delegate in the Decision on Review discussing the request that the Applicant's plan funding be self-managed – we can advise that we have sought instructions in relation to the Agency producing those materials.  If records held by the Cerebral Palsy Alliance are sought more generally, then those records could be obtained by the Applicant requesting that the Tribunal issue a summons to that entity.

    Caution to the parties about how they approach this expedited proceeding

12. While the Tribunal acknowledges the significant conflictual and difficult history between the parties in relation to CKPN’s participation in the NDIS, the Tribunal’s impression is that both parties have approached this proceeding to date in an overly adversarial manner. The Tribunal has agreed to proceed with this application expeditiously at the request of CKPN’s parents. This is likely to be to the benefit of both parties. For the Tribunal to achieve expedition, both parties should be mindful of the need, always, to approach the preparation of this case for a hearing in a streamlined, collaborative, and non-adversarial manner. If they do not do so, they will place into jeopardy the privilege that has been afforded to the parties of the Tribunal hearing this application on an expedited basis.

13. The parties are also reminded that the Tribunal has a statutory objective, among others, to proceed with this proceeding in a way that is (emphasis added) “fair, just, economical, informal, and quick”.[1] This proceeding will be conducted with that objective firmly in mind.

    [1] Refer s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

    CONSIDERATION

14. At the interlocutory hearing, the Tribunal heard submissions from the parties in relation to:

    (a)the NDIA’s requests for 15 summonses to be issued to different persons and entities; and

    (b)CKPN’s proposed request for a summons to be issued to Cerebral Palsy Alliance.

15. To decide what summonses are appropriate to be issued in this matter, it is important for the Tribunal to first identify the issues arising in this case requiring determination.

    Issues to be determined in this proceeding

16. The Tribunal notes that in the NDIA’s internal review decision dated 25 July 2021 (Decision Under Review), the NDIA claims that CKPN was requesting the following outcome:

    The outcome you sought from the internal review was:

    1. Funding in the Core budget for the following supports:

    a. $1,000 for low cost, low risk assistive technology items; &

    b. 50 hours of support worker assistance per week.

    2. Funding in the Capacity Building budget for the following supports:

    a. Speech Therapy, Feeding Behaviour Therapy, Psychology and

    Occupational Therapy as per the respective recommendations in

    reports by treating professionals;

    b. Funding for Intensive Feeding Therapy;

    c. Funding for Support Coordination equal to 1 hour per week as per the

    funds provided in CKPN’s previous plan; &

    d. Funding for a Paediatric Dietitian and Nutritionist.

    3. Change in plan-management from plan-managed to self-managed.

    4. Change in plan goals as per your letter dated 24 May 2021.

    As per your email on 15 July 2021, we confirmed that your internal review request

    was for the above stated supports.

17. The Tribunal has reviewed CKPN’s email dated 15 July 2021 and is satisfied that CKPN had, at that time, confirmed that CKPN sought the supports listed above to be reviewed by the NDIA internal reviewer. The internal reviewer decided that the original decision (to approve CKPN’s SOPS in her NDIS plan) was correct and that the supports referred to in the list in paragraph [16] (under items 1 and 2), did not meet the “reasonable and necessary” criteria under s 34 of the NDIS Act or Part 5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) and the National Disability Insurance Scheme (Plan Management) Rules (Plan Management Rules).

18. In CKPN’s “Application for Review” form lodged with the Tribunal, each of these issues referred to in paragraph [16], were addressed by CKPN’s parents in the section entitled “Why do you claim that decision is wrong?”.

19. The Tribunal has decided and makes an order under s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that the issues to be decided in this application are whether CKPN should receive and/or be funded for the following supports in her SOPS:

    (a)provision of support workers to provide care to CKPN (50 hours per week);

    (b)provision of allied health services to CKPN by the following types of therapists:

    (i)speech therapist;

    (ii)feeding behaviour therapist;

    (iii)psychologist;

    (iv)occupational therapist;

    (v)intensive feeding therapist;

    (vi)paediatric dietitian and nutritionist;

    (c)provision of support coordination by a support coordinator for 1 hour per week; and

    (d)$1,000 for low cost, low risk assistive technology items;

20. Section 33 of the NDIS Act provides that a participant’s plan must include a SOPS and that a SOPS must specify the general supports, reasonable and necessary supports, a review date, and the management of the funding and other aspects of the plan. The SOPS does not specify the participant’s goals, objectives, and aspirations.[2] They are to be specified in a participant’s plan.[3] The Tribunal’s authority to undertake a review in relation to the NDIS is limited to reviewing an internal review decision under s 100(6) of the NDIS Act. In turn, an NDIA internal reviewer undertaking an internal review under s 100(6) may only review a “reviewable decision”, which, in turn, is defined under 99 of the NDIS Act. The relevant “reviewable decision” under s 99, in this case, is a decision under s 33(2) of the NDIS Act to approve the SOPS in a participant’s plan. It does not extend to other things included in the participant’s plan, such as their goals, objectives, and aspirations. For this reason, the Tribunal makes an order under s 25(4) of the AAT Act that the issues in this proceeding will be narrowed and will exclude any consideration of the issue in relation to the goals as stated in CKPN’s plan.

    [2] Refer s 33(2) of the NDIS Act.

    [3] Refer s 33(1) of the NDIS Act.

21. Finally, the issue about who should manage CKPN’s plan, specifically, whether it should be self-managed (in effect, by CKPN’s parents) or by the NDIA, is a matter which must be included into a participant’s SOPS under ss 33(2)(d) and (e) of the NDIS Act. The issue about who should manage CKPN’s plan was a matter raised as part of the internal review process under s 100(6) of the NDIS Act and decided upon by the NDIA internal reviewer. For those reasons, the Tribunal orders under s 25(4) of the AAT Act that the issue about whether CKPN’s SOPS and plan will be self-managed or NDIA-managed, will be considered and decided upon by the Tribunal as part of this application for review.

    Requested summonses to Northern Beaches Care Centre, Kids World Paediatric Therapy, Bright Eyes Early Intervention, Speech Pathology Services and Dr Reuben Jackson (paediatric gastroenterologist)

22. Regarding the requested summonses to Northern Beaches Care Centre, Kids World Paediatric Therapy, Bright Eyes Early Intervention, Speech Pathology Services and Dr Reuben Jackson (paediatric gastroenterologist), CKPN’s parents request the summonses be limited to seeking the production of records for the past 12 months. CKPN’s parents contend as follows:

    In our view, there is no reasonable basis to summons medical files for the past 2 years. A 2 year period stretches across 3 care plans which is unnecessarily onerous on the provider and no longer relevant to CKPN's current condition. NDIA requires recent updated reports before each care plan meeting so that the information is up-to-date. Yet in this proposed summons it contradicts that approach by attempting to obtain outdated and irrelevant information. CKPN's previous condition under past care plans has already been litigated and resolved under prior proceedings: to seek to undermine those past settlements is unnecessary and an abuse of process in the current proceeding. This also places an unnecessary burden on CKPN's support network which has been dragged through multiple proceedings, straining and detracting from our therapeutic relationships with them.

23. The proposed addressees of these requested summonses are medical or allied health practitioners who have been involved in the medical care or the provision of allied health services to CPKN. The Tribunal considers that documents and clinical records held by those persons or entities are likely to shed light on the issues identified in paragraph [19] above.

24. CKPN is only four years old. The clinical records of these medical and allied health professionals would, at best, span those four years and in some cases, for a lesser time if they have not treated CKPN for her entire life. In the broader scheme of things, four years is not a lengthy period. In the present digital age, the Tribunal considers that it may be easier for the relevant medical clinic or medical or health professionals to click a button and to print out the entire set of clinical notes for a patient or client, in answer to summons rather than being required to dissect those records into a specific time period. It may not necessarily be less onerous for the persons receiving the requested summonses to be required to produce only the previous 12 months of those records.

25. The Tribunal considers that information about the progression of CKPN’s needs and the treatment of them to date, are relevant matters the Tribunal will need to consider in deciding this case and the complete set of medical or clinical records held by Northern Beaches Care Centre, Kids World Paediatric Therapy, Bright Eyes Early Intervention, Speech Pathology Services  and Dr Reuben Jackson, Paediatric Gastroenterologist can be reasonably expected to shed light on such matters.

26. For those reasons, the Tribunal will issue the requested summonses to Northern Beaches Care Centre, Kids World Paediatric Therapy, Bright Eyes Early Intervention, Speech Pathology Services and Dr Reuben Jackson, Paediatric Gastroenterologist in terms proposed by the NDIA.

    Requested summonses to Randwick Specialists and Sydney Children’s Hospital

27. Regarding the requested summonses to Randwick Specialists and Sydney Children’s Hospital, CKPN’s parents request that they not be issued by the Tribunal for following reasons:

    In May 2020, CKPN’s mother had a telehealth appointment with Dr Meg Farnsworth once in relation to possibly treating CKPN for chronic pain management. A copy of her report following this one-off appointment is attached and comprises the entire extent of Ms Farnsworth's involvement. Ms Farnsworth is not CKPN's treating psychologist as NDIA suggest in its request to the AAT. Indeed, CKPN has never actually been treated or seen by Ms Farnsworth. Although Dr Jackson made a referral to Ms Farnsworth, Dr Meg Farnsworth is unwilling to see CKPN for any NDIS related matters. An initial appointment was never made for CKPN to see Dr Farnsworth. A copy of an email dated 11 March 2021 confirming Dr Meg Farnsworth's position is attached. Further, the one-off appointment occurred well over 12 months ago. As a result, we submit that these two summons should not be issued.

28. The Tribunal is satisfied that requested summonses to Randwick Specialists and Sydney Children’s Hospital may result in the production of documents, specifically those created and held by Ms Farnsworth, such as her reports of or handwritten clinical notes of her consultation with CKPN’s mother in May 2020 or any correspondence between Ms Farnsworth and the referring doctor, Dr Jackson. The Tribunal considers that the information in such documents can be reasonably expected to shed light on one of the issues in this application, namely, whether CKPN should receive or should be funded to receive allied health services from a psychologist.

    Proposed request for summonses to be issued to Ms Wilson and Ms Stevenson

29. Regarding the proposed summons to be issued to Ms Wilson, CKPN’s parents submitted:

    This should be limited to 12 months in line with our proposed time period in the earlier summons. The documents sought should also be limited to those 'in relation to nutrition services'. Further, the three reasons cited by the Respondent's Representative in its Request to Issue Summons (core supports for a support worker, low cost technology items, and capacity building) are irrelevant to Ms Wilson's role as a nutritionist(sic) under the line item 'Improved Health and Wellbeing (CB Health & Wellbeing)' and seek that the relevancy be explained.

    We would like to see the proposed summons to Ms Wilson in the same manner as the other proposed summons. and reserve the right to raise objections once the draft and request are provided. Further, we once again suggest that any summons be limited to the past 12 months.

1. When the NDIA initially foreshadowed a proposed summons request in relation to Ms Stevenson, CKPN’s parents submitted:

   We fail to see any reason why Ms Stevenson's documents would be relevant to the issues cited by the Respondent's representatives to the AAT, namely:

   ·Core support funding for 40 – 50 hours of support worker assistance per week; 

   ·Core support funding of $1,000 for low cost, low risk assistive technology items; 

   ·Capacity building funding for speech therapy, feeding behaviour therapy, psychology and occupational therapy,  

   We would like to know how Ms Stevenson's documents could possibly relate to any of the above. Alternatively, if NDIA has some other objective in summoning Ms Stevenson, we would like to know.

2. Further, on 17 September 2021, after CKPN’s parents had received a copy of the draft summons to Ms Stevenson, they submitted as follows:

   We raised a specific question for the Respondent to answer regarding this and it has not been answered. As noted in our last email, the proposed summons will not assist the Tribunal to determine any of the 3 issues the Respondent has set out in its Request to Issue Summons because they are irrelevant to Ms Stevenson's role.

3. At the interlocutory hearing, the Tribunal asked CKPN’s parents to explain the role of the two nutritionists in respect of CKPN. CKPN’s mother explained that Ms Wilson is a nutritionist based in Western Australia and that her role has been to prepare the meal plans for CKPN. CKPN’s mother said that Ms Stephenson is a nutritionist based in New South Wales and she was involved in preparing the meals for CKPN, using the meal plans prepared by Ms Wilson. Given that these allied health professionals have different roles in provision of nutritional support to CKPN, the Tribunal is satisfied that it is appropriate to issue summonses to both. The Tribunal is satisfied that the documents likely to be produced by them can be reasonably expected to shed light on the issue about whether CKPN should receive (or continue to receive) support in the form of allied health services from a paediatric dietitian, nutritionist, feeding behaviour therapist and/or intensive feeding therapist. The Tribunal proposes to ask them some questions at the substantive hearing.

4. For that reason, the Tribunal will issue the summonses to Ms Wilson and Ms Stevenson to produce all clinical records in relation to CKPN, including the meal plans developed for her, and to give evidence at the substantive hearing. The Tribunal will not limit the period of the summons to produce to 12 months, or at all, for the same reasons as set out in paragraphs [22] to [25] above.

   Requested summonses to support worker agency, Hire Up, and three individual support workers

5. The NDIA has requested that a summons be issued to a support worker agency, Hire Up Pty Ltd (Hire Up), seeking production of the following documents:

   All records (electronic or hardcopy) for [CKPN DOB omitted] including but not limited to diary notes, schedules, rosters, correspondence (with contracted support workers or otherwise) concerning assistance provided or assistance beyond the capacity of the provider, referrals and reports.

6. The NDIA states that it is seeking all records held by Hire Up in relation to CKPN and that it understands that this company has provided support worker assistance or made arrangements for contractors to provide such services to CKPN.

7. The NDIA has also requested that three further summonses be issued to individual support workers who have cared for CKPN: Support Worker D, Support Worker K and Support Worker J. The NDIA would like the following documents produced under those summonses:

   All records (electronic or hardcopy) for CKPN (DOB omitted) including but not limited to diary notes, schedules, rosters, correspondence concerning assistance provided or assistance beyond the capacity of the provider, referrals and reports.

8. When the NDIA previously foreshadowed to CKPN’s parents, its intention to request these summonses, CKPN’s parents submitted that those support workers “played a fundamental role in CKPN's care and the significance of their role should be respected rather than them being interrogated unnecessarily”. At the interlocutory hearing, CKPN’s mother asserted that CKPN’s former support workers had been “cross-examined and traumatised” in previous AAT review proceedings, resulting in them ceasing to provide care services to CKPN. Counsel for the NDIA doubted this assertion on the basis that she said the past AAT proceedings were settled. CKPN’s father responded to this submission by informing the Tribunal that those proceedings were heard, albeit partly, before a settlement was reached during the hearing process. CKPN’s father said this had placed a “huge strain” on CKPN’s support network.

9. CKPN’s parents objected to certain aspects of this requested summons to Hire Up as follows:

   This should be limited to 12 months in line with our proposed time period in the earlier summons.  The documents sought should also be limited to those 'in relation to providing care services'  We ask that the Respondent also explain what is meant by "assistance beyond the capacity of the provider" as this is ambiguous drafting and it is not at all clear what this means.

10. CKPN’s parents also objected to certain aspects of the three requested summonses to the individual support workers as follows:

    This should be limited to 12 months in line with our proposed time period in the earlier summons.  The documents sought should also be limited to those 'in relation to core support carer services'.  The Respondent must also explain what is meant by "assistance beyond the capacity of the provider" as this is ambiguous drafting and it is not at all clear what this means.

11. The NDIA has requested the summonses to Hire Up hoping to obtain documents relating to the level of usage by CKPN of support workers in the past, with an expectation that this may inform whether the level of funding requested by CKPN as part of this review meets the “reasonable and necessary” criteria. At the interlocutory hearing, the NDIA confirmed that it would also like to obtain a copies of the progress notes prepared by the support workers.

12. In the interlocutory hearing, CKPN’s mother told the Tribunal that there were currently only two support workers engaged to care for CKPN being:

    (a)Support Worker J, who provided care for CKPN three days per week; and

    (b)Support Worker L, another support worker who was named in the requested summonses, who provided care for CKPN one day per week. 

13. CKPN’s mother told the Tribunal that Support Worker J had been providing services to CKPN since about March 2021 and that while she was engaged by Hire Up Pty Ltd initially, she is now engaged directly by CKPN. CKPN’s mother explained that she undertakes informal progress meetings with the support workers to discuss CKPN’s progress. CKPN’s mother said that “data sheets” from the support workers were compiled and given to CKPN’s psychologist. The Tribunal asked whether CKPN’s mother would provide those “data sheets” to the Tribunal and the NDIA, and she gave an undertaking to the Tribunal do so.

14. The Tribunal asked CKPN’s parents if they were intending to call CKPN’s primary support worker to give evidence at the substantive hearing. The Tribunal indicated that it would ordinarily expect to hear evidence from such a witness in a case such as this application involving a consideration of whether there should be increased funding for support workers to provide care to CKPN. CKPN’s father flagged that it was a possibility and may even be likely that he would call a support worker as a witness. However, CKPN’s father was non-committal about his intentions in this regard. CKPN’s parents remained concerned about whether the support workers would be harassed by the process. The Tribunal informed the parties that it would ensure that the hearing is conducted in a manner to ensure that witnesses were not harassed or traumatised by the process, and that appropriate instructions would be issued (to representatives on both sides), to ensure that the examination of all of the witnesses during the hearing will be conducted with due respect and civility.

15. The Tribunal considers that the experience that CKPN has had in the past of receiving this type of support (personal care, as provided by support workers), is a matter that the Tribunal should take into account when deciding whether the “reasonable and necessary” criteria under the s 34 of the NDIS Act, are met for this type of support. The question is how this should be approached in the most efficient and effective manner.

16. The Tribunal is satisfied that it is appropriate to issue the summons to Support Worker J who is CKPN’s current primary support worker. This will be a summons requiring her to produce all documents relating to CKPN and to appear at the substantive hearing to give evidence. The Tribunal considers that the evidence to be given and the documents to be produced by Support Worker J can be reasonably expected to shed light on the effectiveness of the provision of support workers to CKPN in recent times and to ascertain her view about CKPN’s specific care needs. There is no need for the Tribunal to consider limiting the period of the summons to produce documents, as requested by CKPN, because Support Worker J has only cared for CKPN since about March 2021.

17. The Tribunal is also satisfied that it is appropriate to issue a summons to produce documents to Hire Up. The Tribunal will confine this summons to produce to documents comprising all rosters or schedules of the allocation of support workers to care for CKPN, and the progress notes prepared by the support workers in respect of the care of CKPN. The Tribunal does not consider it appropriate to confine the period of this summons to 12 months. It is correct that in deciding what supports, and at what level, are appropriate for CKPN now, it is important to consider the supports provided under previous plans and whether such supports have been effective or beneficial. CKPN, by her representatives, will be at liberty to make submissions to the Tribunal at the substantive hearing about the degree of weight that should be given to the earlier records held by Hire Up in respect of CKPN, if indeed, the NDIA seeks to rely upon those earlier records.

18. At this point and subject to further order, the Tribunal is not satisfied that it is appropriate for any other individual support worker to be summonsed to produce documents in this application.

    Requested summons to In Home Care Support Agency

19. The NDIA has requested that a summons be issued to In Home Care Support Agency (IHCSA) seeking production of the following documents:

    All records (electronic or hardcopy) for CKPN (DOB omitted) including but not limited to diary notes, schedules, rosters, correspondence concerning assistance provided or assistance beyond the capacity of the provider and eligibility for the In Home Care Program, referrals and reports.

20. The reasons given by the NDIA for requesting this summons be issued to IHCSA, include:

    (a)based on the NDIA’s understanding:

    (i)IHCSA had considered CKPN’s eligibility for its in-home care program during the term of an earlier NDIS plan;

    (ii)IHCSA had indicated that CKPN was not eligible to participate in the program having regard to her care needs at that earlier point in time;

    (iii)IHCSA had liaised with the organisation that was providing care to CKPN through the program at the time;

    (b)it will assist the Tribunal’s consideration of whether the requested supports meet the “reasonable and necessary” criteria under the NDIA Act; and

    (c)there is an issue arising in this proceeding about whether CKPN “might alternatively access support worker assistance via the In-Home Care Program administered by the Department of Education, Skills and Employment”.

21. CKPN’s parents strenuously objected to the issuing of this summons, asserting that it is “unnecessary and disproportionate” for at least, the following four reasons:

    First, as explained in our last email, there is no reasonable basis to seek documents from many years ago which are not relevant to CKPN’s current condition or current care arrangements. IHC were involved 2 years ago during a very old care plan. 

    Second, the involvement of IHC and the suitable agency between NDIA vs IHC are issues already litigated before this Tribunal and settled long ago, which the Respondent now seeks to effectively re-litigate. One of the documents which informed the Respondent's decision to settle at that time was a formal determination letter from IHC, another government body. That letter determined that IHC was unable to cater to CKPN's disability needs as their focus was on education and care. Having settled and agreed that IHC is not the appropriate agency based upon this evidence, the Respondent now seeks to question and undermine the credibility of that government agency decision made 2 years ago by re-examining the file. This amounts to a fishing expedition.

    Third, the Respondent self-evidently accepted when settling at that time that NDIA was indeed the appropriate agency to provide support and that core supports were reasonable and necessary under s34 of the NDIS Act because it agreed to provide such support. Therefore, this summons and the premise behind it is internally contradictory.

    Fourth, even if the Respondent were permitted to resurrect the argument that IHC is the appropriate agency (which we deny), it is difficult to understand how old IHC files from 2 years ago could be relevant to CKPN's current education and disability needs and circumstances. There has been no recent engagement with IHC. The Respondent knows nothing about CKPN's circumstances because under the last 2 care plans it has never actually raised the argument that IHC is the appropriate agency nor did this argument feature in the NDIA internal review decision dated 19 July 2021, effectively being a new issue being introduced.

22. At the interlocutory hearing, CKPN’s mother told the Tribunal that CKPN was now attending a mainstream preschool two days per week. When asked by the Tribunal, CKPN’s mother said CKPN commenced preschool in about May 2021, with the intention that she will increase to three days per week in 2022. The Tribunal does not recall CKPN’s parents informing the Tribunal of this significant development at the directions hearing on 30 August 2021, when CKPN’s parents sought expedition of this proceeding.

23. CKPN’s mother said that she had emailed IHCSA the day before the interlocutory hearing and had been informed by IHCSA by email that a significant amount of time had passed since CKPN had been assessed by IHCSA and she would need to be reassessed for eligibility for the in-home care program. This email exchange has now been provided to the Tribunal.

24. CKPN’s mother’s email to IHCSA dated 21 September 2021 states that CKPN had received support through this in-home program about two years ago and that CKPN was being provided with additional support through the Department of Education under the Disability and Inclusion Program. In this email, CKPN’s mother also states as follows:

    At preschool, a support worker attends with CKPN (in addition to the preschool staff) to assist with her transition to this mainstream setting and also assist with her functional needs (her education needs are catered for by the preschool). CKPN has been making significant progress at mainstream preschool and a key element is her exposure to other children the same age to improve her social skills and reduce her anxiety. We are satisfied that CKPN's education needs are being well met by the preschool and the Department of Education with the current arrangements that are in place and are at the same level as any other child 4 years of age.

25. The Tribunal notes that IHCSA responded to CKPN’s mother on 21 September 2021 as follows:

    As you are aware the In Home Care eligibility is assessed by creating a Family Management plan and collecting relevant documents to demonstrate that you meet the criteria. As your family has not accessed the program for the past 2 years, we would need to conduct a completely new assessment.

    The focus of IHC program is to provide early childhood education and care to families who can demonstrate mainstreams forms of childcare are not suitable or available. Your family will need to demonstrated(sic) that CKPN has challenging and complex needs, and provide evidence that her education and care requirements cannot be catered for in another approved child care setting or through other government funded or community-based services.

    From the information mentioned in your email, CKPN is already accessing preschool, which is meeting her education needs and we would strongly encourage you to continue with this. While I cannot deem eligibility based on only the information provided, the supports you are requesting for CKPN appear to fall out of scope of the IHC program…

26. Based on those matters, the Tribunal considers that it is appropriate at this stage not to issue the summons to IHCSA. Instead, the Tribunal encourages the parties to jointly prepare a list of questions to be put to IHCSA to obtain definitive information about whether CKPN is even eligible to participate in the IHCSA’s in-home program and if so, on what basis. If the answer to that question is no, then this issue will have been resolved simply enough. If not, the Tribunal will entertain a further request from the NDIA for a summons to be issued to IHCSA, but only after an attempt has been made by the parties jointly to obtain clarification as to such matters from IHCSA by sending to this entity an agreed list of questions to be answered for the purpose of this proceeding.

27. At the substantive hearing of this proceeding, the parties should note that the Tribunal would be most interested to hear evidence from the support worker who currently attends preschool with CKPN. Specifically, the Tribunal indicates that it will entertain a request by either party for a summons for that person to attend the hearing by telephone or video conference to give evidence.

    Requested summons to Leor Pty Ltd

28. The NDIA requested a summons be issued to a service provider, Leor Pty Ltd (Leor), for its documents in respect of CKPN. The NDIA’s request is based on its understanding that Leor provided assistance to CKPN in connection with the in-home care program during the term of CKPN’s earlier NDIS plans and that “the provider stopped providing care assistance having regard to the Applicant's care needs at the time”.

29. CKPN’s parents objected to this summons on the following basis:

    Leor was the support provider for IHC from 2 years ago. As such, the same objections as above apply to this summons. We are unable to see how any of this information is relevant to reasonable and necessary supports under s34 in the current care plan.

30. The Tribunal considers it appropriate to take a similar approach to this request for summons as it did in respect of the request for the summons to IHCSA, in that the Tribunal does not consider it appropriate to issue this summons at the present time. Further, the Tribunal is not satisfied, at the present time, that documents that might be produced by Leor about interactions between their representatives and CKPN and her parents over two years ago, would be sufficiently probative in respect of the issues identified by the Tribunal in this case, to justify the impost on Leor of it being required to comply with a summons issued by the Tribunal.

    Request for summons to Cerebral Palsy Alliance

31. On 21 September 2021, CKPN’s parents submitted a request to the Tribunal to issue a summons to Cerebral Palsy Alliance to produce documents. At the interlocutory hearing, the Tribunal sought an explanation about why this request had been made and what documents CKPN’s parents were hoping to retrieve. CKPN’s parents asserted that Cerebral Palsy Alliance had acted as a representative of the NDIA at one stage. CKPN’s parents said they were hoping to retrieve correspondence that had passed between Cerebral Palsy Alliance and the NDIA wherein Cerebral Palsy Alliance had purportedly made recommendations to the NDIA to provide certain supports to CKPN. CKPN’s parents said that this correspondence may also contain information about the supports provided to other NDIS participants in analogous circumstances to CKPN.

1. The Cerebral Palsy Alliance is a separate entity from the NDIA. Any view that Cerebral Palsy Alliance may have expressed to the NDIA about recommended supports for CKPN will have no bearing on this Tribunal’s decision in relation to the issues described in paragraph [19]. However, information about the level and type of supports offered to other NDIS participants in circumstances analogous to CKPN is a matter that can be reasonably expected to shed light on the issues in this proceeding.

2. The Tribunal is not prepared to issue the requested summons to Cerebral Palsy Alliance at this stage. Instead, Tribunal has decided to issue a Direction that the NDIA immediately review its file, specifically, all correspondence between Cerebral Palsy Alliance and the NDIA, to identify any documents containing information about the level and type of supports offered to other NDIS participants in circumstances analogous to CKPN. Those documents are to be redacted to remove personal identifying information in relation to those other participants, and then lodged with the Tribunal and given the Applicant.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

...........[SGD]...........

Associate

Dated: 28 September 2021

Date of hearing:

22 September 2021

Representatives for the Applicant:

Self-represented, by the

Applicant’s parents

Counsel for the Respondent:

Ms. Melissa Fisher, 9^th Floor
Wentworth Chambers

Solicitor for the Respondent:

Ms. Jane Thomson, Ashurst